TWIN FALLS • In the first days of 2010, the Twin Falls County Sheriff’s Office received a tip from an anonymous source that a Hispanic man and his wife were selling drugs out of their home at 656 Callaway Court.
A deputy went to the home Jan. 8 and dug through the trash, finding evidence that a woman named Jasil Gomez lived there, according to court documents. A week later, Gomez answered deputies’ knock on the door.
She was about to experience firsthand the controversial practice known as civil asset forfeiture, the process by which law enforcement can seize money, cars and other personal belongings without a criminal conviction — sometimes without even accusing the person of a crime.
Gomez told the deputies at her door that there were no drugs and no large amounts of cash inside the Callaway Court home where she lived with her husband, Saul Torres. The deputies were persistent and asked Gomez if they could come inside to check for drugs. Gomez consented, and while looking through a tall dresser in the master bedroom, Deputy Guy Joslin found a plastic bag with a small amount of marijuana, and a glass pipe with brown and black residue.
The discovery prompted the deputies to secure the home and apply for a search warrant. Once a judge signed the warrant, “a thorough search of the residence was conducted,” Joslin wrote in a sworn affidavit.
But rather than finding evidence of a large-scale trafficking operation like the anonymous tipster had suggested, deputies found only circumstantial evidence, like a pendant with the picture of Jesus Malverde, a possibly mythical figure who is worshiped by some drug traffickers as the Narco Saint of Sinaloa, Mexico. They also found a counterfeit Social Security card and counterfeit permanent resident card bearing Saul Torres’ name.
And drugs? The search turned up just one more piece of evidence: another small bag of marijuana. In total, deputies found two small bags of the drug and one pipe, or what law enforcement commonly refers to as a personal-use amount.
But in the top dresser drawer, next to one of the small bags of marijuana, deputies found something else: $11,000 in cash. In other parts of the home, they found another $1,010.
Gomez claimed the money came from her business, a shop called Botanica San Judas that sold candles and other religious items and accepted only cash. But the deputies seized the $12,010, and four days later Joslin wrote an affidavit filed in civil court claiming the money was “contraband, the fruits of a crime, or things otherwise criminally possessed.” Ultimately, $3,000 was returned to Torres and Gomez, while the Twin Falls County Sheriff’s Office kept $9,010.
No criminal charges were filed against the couple.
Federal and state laws on civil asset forfeiture allow officers to seize cash, cars, guns and other items used in the furtherance of drug crimes. The purpose? “Removing the proceeds of crime and disabling criminal organizations,” says a memorandum by Twin Falls police and prosecutors.
While local law enforcement agencies and prosecutors defend the practice, critics call asset forfeiture “policing for profit,” and members of Congress in May introduced legislation to reform federal forfeiture law.
For supporters of the law, its use is simple, straightforward and obvious: Items that are used to commit drug crimes or that are the profits of drug crimes should be taken from the criminals and used to fight future drug crimes.
But critics say the practice gives law enforcement undue incentive to seize property, and they say the standard of evidence in civil asset cases is too low.
To have property seized, a person doesn’t even need to be charged with a crime, and prosecutors don’t have to prove a connection beyond a reasonable doubt. The standard of proof in a civil asset forfeiture case is what’s called “a preponderance of evidence.”
“It turns the burden of proof beyond a reasonable doubt on its head,” Magic Valley defense attorney Tony Valdez said during a May 24 interview from his Twin Falls office. “The statute is pretty broad. You would think due process would require a finding of guilt — if you’re guilty of a crime, then police can seize your property — but the way the statute is, the police just start taking it, and it’s on you to prove your innocence.”
Jennifer Bergin, chief civil deputy in the Twin Falls County Prosecutor’s Office, defended her use of the practice. She said Idaho State Police were doing controlled purchases from Torres and that some of the seized money matched the bills used in the undercover purchases, “further showing that the money was all part of drug deals.”
“There is a lot more information regarding why we believed the money was tied to drug trafficking, and not just a ‘close proximity’ case of a little marijuana,” Bergin said.
But Bergin didn’t know why criminal charges were never filed; she didn’t ask about the criminal case back then because the cases are kept separate and it wasn’t relevant to her civil case.
How the Laws Work
There are three basic ways for law enforcement agencies to seize assets: local and state agencies such as Idaho State Police, sheriff’s offices and police departments can seize assets under the Idaho forfeiture law; federal agencies such as the FBI and Drug Enforcement Administration can seize assets under the federal forfeiture law; and state and local agencies can seize assets under the federal law through a program known as Equitable Sharing.
The most common way in Idaho is for a local law enforcement agency to seize money, cars and guns under the state law, Idaho Code 37-2744. Then the county prosecuting attorney’s office has five days to file a “complaint in rem for forfeiture” — in rem meaning the legal action is taken against the property, not the person from whom it was seized.
That results in case names like “Twin Falls County Prosecuting Attorney vs. $7,761 in U.S. Currency,” and “State of Idaho vs. Green 2005 Ford Freestyle.”
Much like in a criminal case, the officer who seized the asset must write a sworn affidavit explaining why he or she believes the asset was connected to drug activity.
Once the complaint in rem has been filed, the owner or claimant of the property has 20 days to answer it. If the 20 days pass without an answer, the money or car is awarded to the law enforcement agency, which usually gives a percentage of the proceeds to the prosecuting attorney’s office.
In Twin Falls County, for example, the prosecutor’s office keeps 30 percent, and the seizing agency keeps 70 percent.
If the claimant does file an answer, a hearing is set within 30 days. The cases rarely go to trial. Usually the parties agree to a settlement, which is much like a plea agreement in a criminal case. That’s what happened in the case of Torres and Gomez — they agreed to get back $3,000 and let the county sheriff’s office keep the remaining $9,010.
Many get nothing back at all.
Because the cases are filed in civil court and filed against the property itself, the property’s claimants or original owners are not provided with legal assistance from the public defender’s office. Claimants must either represent themselves or hire a private attorney.
“There are not a whole lot of resources to combat it,” Valdez said. “A claimant is usually already paying to defend themselves in criminal court. And if the money seized isn’t that much, how do you justify spending thousands to get $500 back?”
There are other things to consider while challenging a civil case, too, such as ensuring nothing said in your civil hearings will affect your rights in a criminal case, Valdez said.
Federal civil asset forfeiture cases work much the same way as on the local level, with federal agencies like the FBI and DEA seizing assets and the U.S. Attorney’s Office filing the complaint in rem. The biggest differences are the time that a claimant has to file an answer and the time it takes for a hearing to be scheduled.
Then there’s the federal Equitable Sharing program, which allows state and local agencies to turn over seized assets to a federal agency or allows state and local agencies working as part of a joint task force with federal agencies to make seizures under federal laws.
The assets are turned over to the federal government; up to 80 percent of proceeds are returned to the state or local agencies, and the federal government keeps the rest.
The trouble with these laws, critics say, is that they give law enforcement agencies incentives through financial rewards and thus distort their priorities.
The argument goes like this: Why would police focus on getting drugs off the street when they could instead focus on seizing the drug dealer’s money and cars, which they can use to supplement their budgets? And even if there were not outright prejudice, wouldn’t an officer be influenced by the simple knowledge that he or she could help fill the department’s coffers?
Two of the biggest opponents of civil asset forfeiture laws are the American Civil Liberties Union and the Institute for Justice, a Virginia-based law firm that says it “litigates to limit the size and scope of government power.”
“Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources,” the ACLU says on its website. “But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting.”
For their part, local agencies write policies that make it clear what the law should be used for.
A draft of the Drug Asset Forfeiture Policy for the Jerome County Prosecuting Attorney’s Office — obtained through a public records request — says the purpose of asset seizure and forfeiture is “to deprive the criminal participants of the proceeds of their illegal activities and to disable criminal organizations.”
“Law enforcement is the principal objective of forfeiture,” the policy draft says. “Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing investigations, or the due process rights of citizens.”
Despite policies that clearly lay out rules and ethics, the ACLU and the Institute for Justice are skeptical. The Institute for Justice calls civil asset forfeiture laws “some of the greatest threats to property rights in the nation today.”
The law firm has done the most comprehensive work to date in compiling data on the assets seized at federal and state levels in its report “Policing for Profit: The Abuse of Civil Asset Forfeiture.” The growth in the numbers is astounding.
From 2001 to 2006, the federal government seized and retained less than $1 billion of assets each year. In 2007, that number topped $1 billion for the first time. It grew to more than $2 billion per year in 2009, and by 2014 the federal government was seizing and retaining nearly $4.5 billion of assets per year.
Similar data for the total seized in Idaho are not readily available because of the state’s poor reporting requirements. That, plus law enforcement’s low bar of evidence and the fact that agencies can keep up to 100 percent of the forfeiture proceeds they seized, earned Idaho a D- in the Institute for Justice’s “Policing for Profit” report.
But Idahoans needn’t feel slighted by the failing grade — 24 other states also earned a D-, including Utah, Nevada, Washington, Montana and Wyoming. The only neighboring state to earn a better grade was Oregon, which earned a C+ because police can’t keep as much of the proceeds from forfeitures and prosecutors must earn a criminal conviction before they can seize assets in a civil case.
The matter of civil asset forfeiture is uniting lawmakers on both sides of the aisle.
Conservative Sen. Chuck Grassley, R-Iowa, slammed the federal forfeiture law last year while calling for reform.
“As asset forfeiture is currently practiced, nothing is obliging the government to control itself,” Grassley said during a Senate Judiciary Committee hearing in April 2015. “Just the opposite, civil asset forfeiture leads government to exceed its just powers over the governed. It encourages law enforcement to take shortcuts. Rather than prosecute or even arrest, civil asset forfeiture enables law enforcement to seize property without any proof of wrongdoing. And the process creates perverse incentives.”
Grassley wasn’t the first lawmaker to call for reform to the federal forfeiture law, and he wasn’t the last. Rep. Raul Labrador, R-Idaho, announced May 24 he is co-sponsoring bipartisan legislation aimed at reforming the federal forfeiture law.
The bill, authored by Rep. James Sensenbrenner, R-Wisconsin, and co-sponsored by 13 Republican lawmakers and six Democrats, is called the Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act, or the DUE PROCESS Act for short.
The bill would establish stricter timelines for federal forfeiture cases and allow federal judges the discretion to decrease a forfeiture if it’s disproportionate to the underlying crime.
Most importantly, the bill would “elevate the burden of proof by requiring the government to prove its case through clear and convincing evidence,” Labrador said in a statement. But that still doesn’t match the proof beyond a reasonable doubt that a criminal case requires.
“The Fifth Amendment prohibits the government from depriving the people of their property without due process of law,” Labrador said. “This bill levels the playing field and takes an important step to guarantee the rights of property owners … While forfeiture can be an important tool for law enforcement, it also has been abused because of the financial incentive to seize property from Americans without due process.”
The Institute for Justice, while it praised the reform legislation, would rather see forfeiture laws abolished.
On May 19, the bill was introduced in the House and referred to committees, and on May 25 it passed the House Judiciary Committee and moved forward to a full House vote.
Civil Asset Forfeiture in Magic Valley
For all the criticism that forfeiture laws get, south-central Idaho law enforcement agencies for the most part are simply acting within the laws that are on the books.
“It’s the legislators’ fault for allowing these statutes to exist,” said the defense attorney Valdez. “If you make them change it, it wouldn’t happen. I’m not going to say the law is being abused — the statute is what it is. That doesn’t make it right, but if you’re a cop and there’s stuff to be had, the statute allows you to seize it.”
And while talking abstractly about the law is one thing, seeing the benefits of the law adds nuance to the discussion.
On a May afternoon, Twin Falls police officer Bradley Baisch showed off what his K-9 partner, Enzo, could do. A Belgian Malinois, Enzo is almost 3 years old and is trained and certified for both drug interdiction and patrol.
“Drug dealers paid for my drug dog,” Baisch said with a smile.
And it’s true. Money seized from drug crimes paid the cost for Baisch to go to Alabama last year where he first met Enzo. The pair trained together for 10 weeks at the Alabama Canine Law Enforcement Officers Training Center. The total cost for Enzo and the training was about $14,000.
“It’s a nice benefit; we have no problem asking drug dealers to fund our battle against drugs,” Twin Falls police Capt. Matt Hicks said in an interview last month.
Twin Falls police have used proceeds from forfeitures to buy vehicles for the department’s narcotics team, Hicks said. Seized cash is what the department uses for money when it makes a controlled buy using undercover officers or confidential informants. And, of course, the forfeiture proceeds go toward paying for drug dogs like Enzo.
“We have world-class dogs and world-class training,” Hicks said. “Our dog teams are nationally recognized. And it’s all thanks to funds seized from drug dealers.”
The same day Baisch showed off Enzo’s skills, Twin Falls County Sheriff’s Lt. Daron Brown stood next to the diesel engine Dodge pickup he drives and racked his brain to remember when the office seized the truck; his best guess is 2008 or 2009.
Often the cars that are seized in drug forfeiture cases are old and are auctioned off for little profit; records show that since the start of 2015, agencies in Twin Falls County have seized just three cars — a 1994 Ford Ranger, a 1996 Honda and a 1993 Cadillac.
But when the sheriff’s office seized the 2005 Dodge Ram 4X4 SLT, it kept it. It’s now adorned with a large sticker across the back: “Marijuana Eradication.”
“If drug dealers are driving better trucks than police, we need to take them,” said Brown, who has driven the truck since it was seized.
The truck serves several purposes in the quest to eradicate marijuana, the lieutenant said, not least of which is to serve as a reminder to drug dealers or would-be drug dealers that the police can and will seize their stuff.
The truck is also used while educating schoolchildren about the dangers of drugs, Brown said, and for practical purposes like “hauling equipment into the mountains and other places where we look for marijuana grows.”
Hicks, the Twin Falls police captain, said Twin Falls officers take a “conservative approach” to seizing assets.
“We’re not driven by money,” Hicks said. “We’re trying to deter the sales of narcotics. We don’t fund positions with the proceeds or use it to offset salaries.”
That statement aligns with the Drug Asset Forfeiture Memorandum of Understanding signed in 2014 by then-Chief of Police Brian Pike and County Prosecutor Grant Loebs.
“The proceeds of drug-related forfeitures may be used only to further drug enforcement efforts,” the memorandum says. “Department budgets and salaries will not be tied to the amount of assets forfeited and drug enforcement efforts will not be evaluated based on the amount of assets forfeited.”
Like the Jerome County policy, the Twin Falls memorandum is explicit in saying that civil asset cases should be of secondary priority. “A goal of any seizing agency investigation is the criminal prosecution and conviction of those in violation of Idaho Code,” the memorandum says.
But the Times-News reviewed a sampling of Jerome and Twin Falls county cases from the past half-decade and found several that illustrate critics’ arguments against forfeiture laws.
In 2010, a month after Saul Torres and Jasil Gomez lost $9,010 without being charged with a crime, a 15-year-old Colorado girl was arrested at the Greyhound bus station in Twin Falls on suspicion of drug possession. Police said the girl ran away from her Colorado home and rode the bus to Twin Falls to meet up with a 22-year-old man she’d met online. According to an affidavit, the girl had marijuana, illegal pills and $1,265 in her purse.
Police seized the cash and filed a civil forfeiture complaint against the money. The girl’s mother, who also lived in Colorado, answered the complaint and said her daughter had run away, taking her medical marijuana and cash without her knowledge. She said she was a disabled veteran and that forfeiture of the money would cause her undue hardship. She also accused the prosecutor’s office of not responding to her letters and phone calls.
The critics of forfeiture laws say the laws should protect people like the mother, known as innocent third-party property owners. Instead, the state of Idaho won the case and was awarded all $1,265 when the teen and her mother failed to appear for a hearing.
Just a week after the girl’s cash was seized at the bus station, Twin Falls police seized $4,377 from Timothy Lee Craig after they arrested him on a felony count of possession of a controlled substance. That charge was eventually dismissed, but Craig got only half of his money back. The other $2,188.50 went to the police department and the prosecutor’s office.
In January 2011, the Buhl Police Department seized $1,515 from Dewy Voorhees. He never answered the complaint, so the money was forfeited, but Voorhees was never charged with a crime.
In 2012, there were the similar cases 10 months apart of Matthew Lynch and Zachary Tessier. Both men were pulled over on U.S. 93 while driving cars with California license plates. Both were on their way to snowboard in Idaho; both had small personal-use amounts of marijuana; and both had a lot of cash.
Lynch, from California, was pulled over in February after a night in Las Vegas and had $7,761 seized by the Twin Falls County Sheriff’s Office. The agency took $9,100 from Tessier, a skydiving instructor from New Hampshire, who said he was paid in cash and didn’t have a bank account. Both men admitted to having marijuana in their cars and showed no signs of trafficking the drugs, and both eventually pleaded guilty to misdemeanor charges.
Lynch ultimately got back $3,880.50 — half of what was seized. Tessier got back $3,033, while the other $6,067 went to the sheriff’s office and prosecutor’s office.
The ordeal was part of what prompted Tessier to move to Switzerland.
“The system fought me so hard I’ve left the U.S. never to return!!” Tessier wrote in an email. “I was a skydiving instructor; skydiving 1099s its employees. All the cash they took was made legally.”
In 2011 in Jerome, Idaho State Police pulled over Salvador Alamilla-Gonzalez for driving in the left-hand lane, impeding the normal flow of traffic.
“It was an absolutely horrible stop,” said Valdez, who represented Alamilla-Gonzalez. “The basis of the stop was something like he was driving too cautiously.”
ISP troopers found a gun and a scale in the car, but no drugs. Alamilla-Gonzalez was arrested on a misdemeanor count of driving without privileges.
But troopers also found $14,670 in cash, which they seized.
“A drug dog alerted on the money, apparently — imagine that,” Valdez said. “But this kind of shows how crazy it can be. He was not charged with anything criminally and they wanted to take nearly $15,000.”
Magistrate Judge Thomas Borresen ultimately dismissed the case and ruled the stop itself was illegal and the ISP trooper had no justification for stopping Alamilla-Gonzalez.
“To their credit, the folks at the attorney general’s office said, ‘We’ll give your money back,’” Valdez said.
The defense attorney also said most local prosecutors are willing to make deals.
“I will say that at least locally, the prosecutor’s offices that I’ve dealt with are willing to throw you a bone, willing to compromise,” Valdez said. “They’ll engage in settlements.”
It’s ultimately up to lawmakers to fix weak forfeiture laws, Valdez said — if the statutes are reformed and strengthened, law enforcement will be less likely to abuse forfeiture.